As filed with the Securities and Exchange Commission on March 29, 2005
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TASTY BAKING COMPANY
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1145880
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
2801 Hunting Park Avenue
Philadelphia, Pennsylvania 19129
(215) 221-8500
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
TASTY BAKING COMPANY 401(k) AND COMPANY FUNDED RETIREMENT PLAN
AS AMENDED AND RESTATED
(Full title of the Plan)
Charles P. Pizzi
President and Chief Executive Officer
Tasty Baking Company
2801 Hunting Park Avenue
Philadelphia, Pennsylvania 19129
(215) 221-8500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Eric D. Schoenborn, Esquire General Counsel
Stradley, Ronon, Stevens & Young, LLP Tasty Baking Company
Woodland Falls Corporate Park 2801 Hunting Park Avenue
200 Lake Drive East, Suite 100 Philadelphia, Pennsylvania 19129
Cherry Hill, New Jersey 08002
__________________________
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CALCULATION OF REGISTRATION FEE
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Amount to be Proposed maximum Proposed maximum Amount of
Title of securities to be registered registered(1) offering price per aggregate offering registration
Share price (3) fee
----------------------------------------- --------------- ------------------- ---- -------------------- --------------
Common Stock, $.50 par value per share 250,000 shares $ 8.18 (2) $2,045,000 $241
----------------------------------------- --------------- ------------------- ---- -------------------- --------------
(1) Such additional, indeterminable number of shares that may be issuable by
reason of the anti-dilution provisions of the Tasty Baking Company 401(k)
and Company Funded Retirement Plan, as amended and restated (the "Plan")
are hereby registered. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Plan.
(2) Pursuant to Rule 457(h)(1) and (c) of the Securities Act of 1933, based on
the average of the high and low prices per share of the Common Stock as
reported on the New York Stock Exchange on March 28, 2005.
(3) Estimated solely for the purpose of determining the registration fee.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
As used in this Registration Statement, unless the context
otherwise requires, the term the "Company" means Tasty Baking Company and its
subsidiaries, and the term the "Plan" shall mean the Tasty Baking Company 401(k)
and Company Funded Retirement Plan, as amended and restated effective March 27,
2005 (formerly the Tasty Baking Company 401(k) Thrift Plan).
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed by the Company with
the U.S. Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), are hereby
incorporated by reference in this Registration Statement, except as superseded
or modified herein:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 25, 2004;
(b) the Plan's Annual Report on Form 11-K for the fiscal year ended
December 27, 2003;
(c) all other reports filed by the Company or the Plan pursuant to
Section 13(a) or 15(d) of the 1934 Act since the end of the fiscal
years covered by the annual reports referred to above; and
(d) the description of the Company's common stock, par value $.50 per
share ("Common Stock"), contained in the Company's Registration
Statement on Form 8-A/A filed with the Commission on July 27, 2001, and
description of the Company's Common Stock Purchase rights ("Rights")
contained in the Company's Registration Statement on Form 8-A/A filed
with the Commission on August 25, 2003, including any amendments or
reports filed for the purpose of updating such descriptions.
All documents filed by the Company or the Plan pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act on or after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Pennsylvania Business Corporation Law generally provides
that a company shall have power to indemnify its officers, directors and other
parties acting on behalf of the company if such person acted in good faith and
in a manner reasonably believed to be in, or not opposed to, the best interest
of the company, and, with respect to any criminal action or proceeding, the
indemnified party had no reasonable cause to believe his or her conduct was
unlawful. Sections 1 and 2 of Article VII of the Company's Bylaws provide for
mandatory indemnification in such circumstances. Under Section 3 of Article VII,
an independent determination of disinterested directors, legal counsel or
shareholders of the Company will determine whether the person is entitled to
indemnification under Sections 1 and 2. In addition, Section 5 of Article VII of
the Bylaws provides for advancement of expenses in advance of the final
disposition of any action, suit or proceeding upon receipt of an undertaking, by
or on behalf of the person who may be entitled to indemnification under Sections
1, 2 and 4 of Article VII, to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Company.
The Pennsylvania Business Corporation Law also permits a
corporation to include in its bylaws, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law; provided;
however, indemnification shall not be permitted in any case where the act giving
rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness. Section 4 of Article VII of the
Company's Bylaws generally provides for mandatory indemnification of officers
and directors acting on behalf of the Company, except that indemnification shall
not be permitted under the Bylaws in any case where the act giving rise to the
claim for indemnification is determined by a court to have constituted willful
misconduct or recklessness. Indemnification under Section 4 will be provided
without the independent determination required by Section 3 as described above
(e.g., independent determination that director or officer acted in good faith
and in a manner reasonably believed to be in the best interest of the Company).
The Company also has entered into an Indemnification Agreement with each of the
directors of the Company. The Indemnification Agreements provide substantially
the same scope of indemnification as provided under Section 4, Article VII of
the By-Laws, except that under the Indemnification Agreements there is a minimal
amount ($1,000) for which the Company will not be responsible to provide
indemnification, and the Company will not be required to provide indemnification
in respect of any violation of the provisions of Section 16(b) of the 1934 Act.
The Indemnification Agreements are direct contractual obligations of the Company
in favor of the directors. Therefore, in the event that the By-Laws are
subsequently changed to reduce the scope of indemnification, directors with
Indemnification Agreements will not be affected by such changes. In addition, as
with indemnification under Section 4 of Article VII of the By-Laws, no
independent determination of entitlement to indemnification will be required
under the terms of the Indemnification Agreements.
In addition, the Company maintains directors and officers
liability insurance under which its directors and officers are insured against
certain liabilities that may be incurred by them in their capacities as such.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Company will submit or has submitted the Plan and any
amendments thereto to the Internal Revenue Service ("IRS") in a timely manner
and has made or will make all changes required by the IRS in order to qualify
the Plan under Section 401 of the Internal Revenue Code of 1986, as amended.
(a) Exhibits:
23.1 Consent of Mitchell & Titus, LLP
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included in signature page on
page II-4 herein).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
II-2
(i) To include any prospectus required by section
10(a)(3) of the Securities Act
of 1933, as amended ("1933 Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, That paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the 1934 Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the 1933 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the 1934 Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Tasty Baking Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on
March 29, 2005.
TASTY BAKING COMPANY
By: /s/ Charles P. Pizzi
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Charles P. Pizzi, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Each person whose signature appears below constitutes and
appoints Charles P. Pizzi and David S. Marberger, jointly and severally, his
attorneys-in-fact, each with the power of substitution, for him in any and all
capacities to sign any amendments to this Registration Statement on Form S-8,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Name Title Date
/s/ James E. Ksansnak Chairman of the Board and Director March 29, 2005
James E. Ksansnak
/s/ Charles P. Pizzi President, Chief Executive Officer
Charles P. Pizzi and Director March 29, 2005
(Principal Executive Officer)
/s/ David S. Marberger Senior Vice President, Chief Financial
David S. Marberger Officer and Chief Accounting Officer March 29, 2005
(Principal Financial Officer and
Principal Accounting Officer)
/s/ Fred C. Aldridge, Jr. Director
Fred C. Aldridge, Jr. March 29, 2005
/s/ Philip J. Baur, Jr. Director
Philip J. Baur, Jr. March 29, 2005
/s/ Ronald J. Kozich Director
Ronald J. Kozich March 29, 2005
/s/ Judith M. von Seldeneck Director
Judith M. von Seldeneck March 29, 2005
/s/ David J. West Director
David J. West March 29, 2005
II-4
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Philadelphia, Commonwealth
of Pennsylvania, on March 29, 2005.
TASTY BAKING COMPANY 401(k) AND
COMPANY FUNDED RETIREMENT PLAN
By: Tasty Baking Company,
as Plan Administrator
By: /s/ Charles P. Pizzi
---------------------------
Charles P. Pizzi
President and Chief Executive Officer
EXHIBIT INDEX
Exhibit # Description
23.1 Consent of Mitchell & Titus, LLP
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included in signature page on page II-4 herein).